The Native Hawaiian Healthcare Act was introduced in both the Senate and the House for the 107th Congress. In the Senate, it is bill number S.87. In the House, it is bill number H.R.562. In the previous 106th Congress, this bill was S.1929; but it did not pass. The new version of the bill is virtually the same as the one that did not pass in the previous Congress. This bill would provide federal funding for healthcare for all racially-defined kanaka maoli (native Hawaiians), whether they are needy or not, while no such funding is provided for even the neediest citizens of Hawai'i of American, Chinese, European, Filipino, Japanese, or other ancestries (unless they happen to have at least one drop of kanaka maoli blood). In addition to providing an entitlement based on race rather than need, the bill would also give kanaka maoli culturally-specific wellness care that is not available to other ethnic groups under most public or private insurance policies (even very expensive ones). On January 21, 2000 Senators Inouye and Akaka held hearings on this bill in Honolulu at which only kanaka maoli and their supporters were allowed to testify.

Karen Blakeman, a reporter for the Honolulu Advertiser who attended the hearing, published an article on January 22, 2000 including the following: "Federally financed health care for Native Hawaiians should be an entitlement, similar to Social Security or Medicare, witnesses told Sen. Dan Inouye yesterday during a hearing on the reauthorization of the Native Hawaiian Health Care Improvement Act. Inouye agreed and said he wants the act to cover all Native Hawaiians, rather than only those without health insurance. An entitlement would have the advantage of almost guaranteed financing and would take precedence over other federal programs, said Patricia Zell, minority staff director and primary council for the U.S. Senate Committee on Indian Affair So no matter what  even if we had a missile crisis  this program would be funded, Zell said. ... Zell said Inouye is working to incorporate other federally financed health programs into the act, which could allow Native Hawaiians to use military or veterans hospitals and clinics. ... Existing financing under the health care act is about $3.5 million annually. With proposed improvements, the act could more than double in cost, Zell said. ... Improving the health of Native Hawaiians also will require a broader approach than traditional Western medicine allows, witnesses said. Native Hawaiians need not only better medical care, but programs that address wellness and include cultural healing practices, said Kawahine Kamakea-Ohelo, executive director of the Waimanalo Health Center. Witnesses also emphasized a need to address behavioral and environmental programs, and to improve data collection."

This bill is typical of numerous racial entitlement programs for kanaka maoli, funded by the Federal and State governments. Almost unnoticed by the national public and even the citizens of Hawai'i, the State of Hawai'i has quietly become the only state in the U.S. to divide its population into two classes of people: a hereditary elite of kanaka maoli, who receive numerous special racial entitlements plus the benefits enjoyed by all citizens; and non-kanaka maoli, who have the privilege of paying taxes to support these entitlements. KM are fully assimilated into the general population, live side-by-side with non-KM, intermarry, have the same jobs and lifestyle, and mostly have only a small fraction of KM genetic heritage.

In addition to the fundamental unconstitutionality and unfairness of entitlement programs based on race without regard to need, there is language buried in the fine print of this bill which would put Congress on record as endorsing a special political status for kanaka maoli, based on a series of irrelevant, false, or distorted historical claims.

S1929 is one of three bills introduced by Senator Inouye in the Fall of 1999 to provide racial entitlements to kanaka maoli in the areas of housing (S225), education (S1767) and health (S1929). All three of these bills contained trojan-horse political recognition language buried in the fine print, similar to the language analyzed in the testimony below. Two powerful kanaka maoli organizations claim credit for writing this language: Ka Lahui, and OHA. They are trying to do an end-run around the U.S. Supreme Court.

The Rice v. Cayetano decision by the U.S. Supreme Court on February 23, 2000 ruled that the statewide election for trustees of the state Office of Hawaiian Affairs (OHA) can no longer be racially restricted to kanaka maoli alone. The ruling may also have further consequences that racial entitlement programs for kanaka maoli are unconstitutional. The State of Hawai'i has built a large entrenched bureaucracy supporting these entitlements, and OHA has assets of hundreds of millions of dollars which it wants to "protect" against being returned to the general fund of the State. In addition, the political power structure has concluded that it is helpful to the economy of Hawai'i to have large amounts of federal money pouring into Hawai'i, whatever the reason. One way to allow racial entitlement programs to continue even if the Supreme Court rules them unconstitutional is to declare that kanaka maoli have the status of an Indian tribe. Indian tribes can receive entitlement programs that do not need to pass the strict scrutiny test of the courts. Thus, the language in the three entitlement bills seeks to put Congress on record as recognizing that kanaka maoli have historical and legal status as an Indian tribe. Such language is not only false and distorted, it is also dangerous to the sovereignty of a unified State of Hawai'i under the United States of America It is dangerous to the Aloha Spirit because of the divisiveness of establishing a privileged hereditary elite based on race. Although the decision in Rice v. Cayetano directly affects only the issue of voting rights in elections for OHA trustees, the Court specifically recognized that the OHA laws set up a racial classification; and other Court decisions have stated that governmental programs based on racial classifications are permissible only if they pass strict scrutiny by being narrowly tailored to meet a compelling governmental interest, such as remedies for past government discrimination. Thus, the federal racial entitlement bills might be found unconstitutional.

The following testimony was submitted on March 11, 2000 to the U.S. Senate committee in which the bill S1929 was introduced. This testimony provides a point-by-point rebuttal to the 29 false or twisted historical or legal claims made in the "Findings" preamble to the bill, that were intended to provide justification for the health care bill as well as to put Congress on record in support of special political status for a racial group. This testimony was submitted by H. William Burgess and Sandra Puanani Burgess. Kenneth R. Conklin (author of this website) helped write it, along with others who prefer to remain unidentified.

Readers of this website should consider the specific claims and rebuttals as interesting issues to think about on their own merits, and also as typical examples of how the Hawaiian sovereignty activists often make false and misleading statements and try to get governmental agencies to endorse such nonsense by "slipping it past them" in the "fine print." The bill may be passed or defeated, and the language analyzed below may remain the same or may be changed in subsequent drafts of the bill. But the arguments presented in the rebuttal will always remain valid, and the attempt to incorporate false and misleading statements into federal legislation will always remain exposed here.

The Honorable Paul David Wellstone
United States Senate
136 Hart Senate Office Building
Washington DC 20510

Dear Senator Wellstone:
I recently forwarded to the Senate Committee on Indian
Affairs my written testimony on S. 1929, "The Native
Hawaiian Health Care Improvement Act Reauthorization of
1999".

On February 23, 2000, shortly after the deadline for
submission of testimony on the above bill, the U. S.
Supreme Court handed down its decision in Rice v.
Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000).
In Rice, the U.S. Supreme Court struck down a State of
Hawaii law that limited voting in statewide elections
for the Office of Hawaiian Affairs to persons
descended from the pre-1778 inhabitants of the Hawaiian
Islands.

The Rice decision is directly pertinent to the
committee's deliberations on S. 1929; for example, the court
in Rice expressly held that the definition of
"Hawaiian" used in Hawaii's law (which closely parallels the
definition of "Native Hawaiian" in S. 1929) was
"racial" and that the state's "Hawaiians-only" election for
trustees of the state's Office of Hawaiian Affairs
violated the Fifteenth Amendment's prohibition against
limitation of the franchise based on "race". The court
also questioned the constitutional authority of
Congress to treat the racial group consisting of "Native
Hawaiians" as it does an Indian tribe. Read as a whole,
the Rice decision strongly implies that all
legislation favoring Native Hawaiians would, if challenged, be
subject to the test of strict scrutiny applicable to
other racial preferences.

For these reasons, the Senate Committee on Indian
Affairs should take no action on S. 1929 until the impact
of Rice v. Cayetano can be evaluated and the public
(all the public, not just those favoring the bill as
happened at the last hearing in Hawaii) can be given full
opportunity, both in Washington and in Hawaii, for
additional oral and written testimony. I have sent to
the committee a revised version of my earlier testimony
which adds at appropriate places a discussion of the
impact of Rice and incorporates some technical
corrections and elaborations, and I am enclosing a copy for
your personal consideration.
I again urge you to take a serious and skeptical look
at this bill before acting on it. Its racial aspect
wipes out any merit which it might otherwise have. It
holds a pernicious promise of aggravating an already
serious racial polarization of our state, which for
many years was a model of racial integration and harmony.
It is almost certainly unconstitutional. It should
not become law.

As a preliminary matter it should be noted that the
need for these "General Findings" is not clear. The
statements about Hawaiian history and past Congressional
actions have no obvious relevance to medical care.
Instead, they appear to be intended to resolve, by
Congressional fiat, fundamental questions about the legal
and political status of persons of Hawaiian ancestry
which are matters of intense debate.

The recent U. S. Supreme Court decision in the case
of Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S.,
Feb. 23, 2000) answered some of these questions and
hinted strongly at answers to others. Its most dramatic
holding was that the definitions of "native Hawaiian"
(50% or more Hawaiian "blood") and "Hawaiian" (any
degree of Hawaiian "blood") in Hawaii's state law are
"racial", and that the voting restriction there in
question. which limited the franchise in a statewide
election for trustees of the Office of Hawaiian Affairs to
"Hawaiians", violated the Fifteenth Amendment's command
that the right to vote not be denied or abridged on
account of race. The definitions of "native Hawaiian"
and "Native Hawaiian" which appear in various Federal
statutes are essentially identical to state law
definitions of "native Hawaiian" and "Hawaiian",
respectively. The court in Rice also cast doubt upon the
authority of Congress to treat native Hawaiians as it does
the Indian tribes. Many of the "findings" proposed in
this bill must be revised or deleted in light of the
Rice decision.

As to the remaining "findings", their inclusion in
this bill might be harmless if they did not address
sensitive and debatable matters, but they do, and they are
demonstrably incorrect in many instances. In light of
this, they should not be part of this bill unless
there are to be full and open hearings where their
accuracy and their relevance to this bill can be tested.
Because their factual foundations are not set out, it
is difficult to respond to these "findings" in
detail. I have therefore simply outlined where there are
conflicting views, and identified reference materials
which illustrate the conflicts. I urge the committee to
follow up on these points, and undertake a careful
course of hearings and analysis to lay the issues to
rest.

PROPOSED FINDING (1):

"Native Hawaiians begin their story with the Kumulipo
which details the creation and inter-relationship of
all things, including their evolvement as healthy and
well people."

RESPONSE TO (1):

The relevance of this finding is not explained, but
the statement is a bit disingenuous. Without
detracting from the historical, literary and religious
significance of the Kumulipo, it should be noted that it is a
family chant, believed to have been composed around
1700, which served a genealogical and, at times, a
political purpose. MARTHA BECKWITH, HAWAIIAN MYTHOLOGY
(1970), pp. 310-313. King Kalakaua (1874-1891), for
example, used it to bolster his claim to the throne.
MARTHA BECKWITH, THE KUMULIPO (1972), pp. 29, 153. Its
citation here suggests that its political utility is
still recognized.

PROPOSED FINDING (2):

"Native Hawaiians are a distinct and unique indigenous
people with a historical continuity to the original
inhabitants of the Hawaiian archipelago and have a
distinct society organized almost 2,000 years ago."

RESPONSE TO (2):

This finding is factually incorrect in several
respects.

2a. "A distinct people". If "people" is used in its
usual sense of "a body of persons that are united by a
common culture, tradition, or sense of kinship . . .
and that typically have common language, institutions
and beliefs" (Webster's Third New International
Dictionary (Unabridged) (1993), p. 1673), then Native
Hawaiians as defined in the bill, cannot claim such a status.
As one prominent Hawaiian scholar has put it:

"These are the modern Hawaiians, a vastly different
people from their ancient progenitors. Two centuries of
enormous, almost cataclysmic change imposed from
within and without have altered their conditions, outlooks,
attitudes, and values. Although some traditional
practices and beliefs have been retained, even these have
been modified. In general, today's Hawaiians have
little familiarity with the ancient culture.

"Not only are present-day Hawaiians a different
people, they are also a very heterogeneous and amorphous
group. While their ancestors once may have been unified
politically, religiously, socially, and culturally,
contemporary Hawaiians are highly differentiated in
religion, education, occupation, politics, and even their
claims to Hawaiian identity. Few commonalities bind
them, although there is a continuous quest to find and
develop stronger ties." George S. Kanahele, The New Hawaiians, 29 Social
Process in Hawaii 21 (1982).

2b. "A unique people". Such integration likewise
counts against the claims of being "unique" as a group (in
any other sense than the racial one), except insofar
as every group within this country can claim
"uniqueness".
Of course, nothing in this finding explains how the
claimed "distinctness" or "uniqueness" of this group,
identified (in this bill and in other laws) solely by
race or ancestry, would entitle it to preferential
treatment under law, or exempt such treatment from the
constraints of the Fourteenth Amendment.

2c. "Indigenous". While the ancestors of today's
"Native Hawaiians" might have claimed to be the
"indigenous peoples" of the Hawaiian Islands, their descendants
today, extensively intermarried and integrated with
all the other people of Hawaii for many generations, can
hardly claim to be "indigenous". See ELEANOR C.
NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 28-42. See
also the comments to Finding 28 below.

2d. "Historical continuity to the original
inhabitants". If "historical continuity" is intended to imply
that modern-day Hawaiians maintain the societal and
cultural forms of the "original" inhabitants of the
islands, then this "finding" is incomplete and inaccurate.

2d1. Precontact Hawaiians had no written history, and
there is debate as to who the "original inhabitants of
the Hawaiian archipelago" were, where they came from
and when they arrived. See generally ELEANOR C.
NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 7-12. There
is a considerable body of opinion that there were
various waves of migration from the Marquesas Islands,
Tahiti and possibly Samoa, beginning sometime between the
birth of Christ and roughly 1000 A.D.

2d2. The society of the "original inhabitants" of the
Hawaiian Islands underwent significant change both
before and after Western contact. There was at least one
radical discontinuity reflected in the legends and oral
traditions which occurred long before Western contact,
when immigrants from the South Pacific introduced the
"kapu" system which ensured the absolute power of the
chiefs over the commoners. See MARTHA BECKWITH,
HAWAIIAN MYTHOLOGY (1970), pp. 369-375. Thus the
precontact "society" of 1778 was very different from the
precontact "society" of the earlier immigrants.

2d3. After Western contact, radical change and social
discontinuity were the order of the day. Hawaii's
early kings and chiefs accomplished a near miracle in
maintaining their nation's independence while guiding and
shaping the chaotic forces which focused on the
islands. It was Hawaii's own native leaders who dispensed
with the "old religion" of polytheism and human
sacrifice even before the arrival of Christian missionaries
in 1820. 1 KUYKENDALL, THE HAWAIIAN KINGDOM (1938) pp.
65-70. A generation later, it was Hawaii's own native
leaders, drawing upon but not surrendering to their
Western advisors, who replaced ancient forms of
governance, land management, land ownership and many aspects
of economic life with Western models. See generally 1
KUYKENDALL, THE HAWAIIAN KINGDOM (1938), pp. 227-334;
Paul M. Sullivan, Customary Revolutions: The Law of
Custom and the Conflict of Traditions in Hawaii, 20
U.Haw. Law Rev. 99 (1998) 112-117. By the time it passed
into history, the Hawaiian kingdom was a
constitutional monarchy in the Western style, with a racially mixed
legislature, judiciary and Cabinet governing a
multi-racial nation which was fully accepted as an equal in
Western diplomatic circles and boasted a literate
citizenry well-educated in Western as well as Hawaiian
ways. See generally 3 KUYKENDALL, THE HAWAIIAN KINGDOM
(1967).

2d4. One other vital influence on Hawaiian history since
Western contact was an early and continued practice of
intermarriage with all the ethnic and racial groups
which have made Hawaii their home over the last two
hundred years and more. Intermarriage brought a multitude
of cultural influences into the "historical
continuities" of Hawaiians and new arrivals alike.
Thus from the perspective of history we see that as
the "continuity" of Hawaiians to the old culture waned,
their "continuity" to the varied cultures of the
Pacific and the world expanded and intensified.

2d5. Indeed, the asserted "continuity" of all modern-day
Native Hawaiians to the "original inhabitants of the
Hawaiian archipelago" is simply the justifiable pride
of ancestry and historical connection we all feel for
the best traditions and accomplishments of our
ancestors. For today's 8,000 or so "pure" Hawaiians, perhaps,
that pride is more focused than in the thousands of
Hawaiians whose forebears came from varied regions of
Europe, Asia and America and whose ancestors thus
represent most of the great civilizations of the earth. It
is, however, a universal characteristic of humanity.
As it exists in Hawaii, it carries no political
consequence and justifies no special treatment.

2e. "Native Hawaiians . . . have a distinct society
organized almost 2000 years ago". This is simply not
true. Whatever form or forms the precontact Hawaiian
"society" took before Captain Cook arrived in 1778, it
cannot be said that it persists today as it existed
either at Western contact or at any earlier time.

2e1. Today's Native Hawaiians as defined by this bill
do not "have" a "distinct society organized almost
2,000 years ago". As George Kanahele points out, the
"society" of today's Native Hawaiians, as they are
defined in this bill, is the "society" of the State of
Hawaii and the United States. They do not, as a group or
as several groups, live apart from the larger
community of the state and nation. Today's citizens of
Hawaiian extraction do not share the religion, language,
forms of government, economics or any other of the
defining social or cultural structures of precontact
Hawaiian civilization. See Paul M. Sullivan, Customary
Revolutions: The Law of Custom and the Conflict of
Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998).

2e2. "Native Hawaiians", as a group defined by race or
ancestry, cannot fairly be said to share today any
common language, religion, economic regime, form of
self-government or other unique group-identifying features
except those of the United States as a whole; as Mr.
Kanahele correctly observes, they are fully and
completely integrated into the larger social and economic
life of the state of Hawaii and the nation. They hold
positions of power and respect at all levels of society
including business, government and the arts; for
example, in the past several years, Hawaii has had a Native
Hawaiian Governor (John Waihee), a Native Hawaiian
state supreme court chief justice (William S.
Richardson), a U.S. Senator (Daniel Akaka) and numerous state
officials and members of the state legislature.

2e3. Indeed, the use of the term "they" with respect
to "Native Hawaiians" is of questionable validity,
except in the context of the racial definitions of this
bill, and of earlier Federal and state legislation using
the same racial definition. If Mr. Kanahele is
correct, then to misquote Gertrude Stein, there is no "they"
there--no group in the real world with any definition
other than the racial or ancestral one.

2f. If the committee undertakes a full and open
exploration of this issue, it is likely to find that as to
"Native Hawaiians", "they" are "us"--Americans, like
all the other varied Americans in the state and the
nation, mostly with mixed racial or ethnic backgrounds and
sharing in the freedom and diversity of lifestyles
guaranteed under the U.S. Constitution of this remarkable
nation. The committee would therefore find,
consistent with Adarand Constructors v. Federico Pena, 515
U.S. 200 (1995), that each "Native Hawaiian" deserves the
same access to medical care, and the same governmental
assistance when necessary, as any American of any
race--without regard to race except as it might bear on
diagnosis and treatment of specific problems in specific
individuals--but that they do not deserve any more.

PROPOSED FINDING (3):

"Native Hawaiians have never directly relinquished to
the United States their claims to their inherent
sovereignty as a people or over their national lands,
either through their monarchy or through a plebiscite or
referendum."

RESPONSE TO (3):

This finding is both factually and legally inaccurate.

3a. "Inherent Sovereignty". Under the law of the
Kingdom of Hawaii, the "people" had no inherent
sovereignty. Sovereignty, in the Hawaiian kingdom, resided
inherently in the monarch, not the "people". In this
respect, the monarchy was very different from a
republic like the United States, where sovereignty--the
supreme political authority within an independent
nation--is with the people.

This difference was clearly set out by the Hawaiian
kingdom's supreme court in the case of Rex v. Booth, 2
Haw. 616 (1863). A law of the kingdom prohibited sales
of liquor to "native subjects" of the kingdom, but not
to other inhabitants or visitors. The defendants
argued that the law was unconstitutional under the 1852
Constitution as discriminatory class or special
legislation. They asserted that in constitutional
governments, legislative authority emanates from the people, and
that the legislature acts as agent of the people, and
that "it is against all reason and justice to suppose
. . . that the native subjects of this Kingdom ever
entrusted the Legislature with the power to enact such a
law as that under discussion."

The court responded: "Here is a grave mistake-a fundamental error-which is
no doubt the source of such misconception. . . . The
Hawaiian Government was not established by the people;
the Constitution did not emanate from them; they were
not consulted in their aggregate capacity or in
convention, and they had no direct voice in founding either
the Government or the Constitution. King Kamehameha
III originally possessed, in his own person, all the
attributes of sovereignty."

The court reviewed Kamehameha III's promulgation of
the 1840 Constitution and its 1852 successor and
explained that by these documents the king had voluntarily
shared with the chiefs and people of the kingdom, to a
limited degree, his previously absolute authority. The
court explained:

"Not a particle of power was derived from the people.
Originally the attribute of the King alone, it is now
the attribute of the King and of those whom, in
granting the Constitution, he has voluntarily associated
with himself in its exercise. No law can be enacted in
the name, or by the authority of the people. The only
share in the sovereignty possessed by the people, is
the power to elect the members of the House of
Representatives; and the members of that House are not mere
delegates."

It would appear that both Kamehameha V and Queen
Lili'uokalani believed that this sharing of sovereignty
could be revoked or modified by the monarch who granted
it, or by his or her successor. In 1864, when
Kamehameha V became frustrated with the inability of the
legislature to agree on amendments to the 1852
Constitution, he simply dissolved the legislature and promulgated
a new Constitution on his own authority with the
statement (quoted here from 2 KUYKENDALL, THE HAWAIIAN
KINGDOM (1953), p. 132):

"As we do not agree, it is useless to prolong the
session, and as at the time His Majesty Kamehameha III
gave the Constitution of the year 1852, He reserved to
himself the power of taking it away if it was not for
the interest of his Government and people, and as it is
clear that that King left the revision of the
Constitution to my predecessor and myself therefore as I sit
in His seat, on the part of the Sovereignty of the
Hawaiian Islands I make known today that the Constitution
of 1852 is abrogated. I will give you a
Constitution."

Of like mind was Queen Lili'uokalani, who stated:

"Let it be repeated: the promulgation of a new
constitution, adapted to the needs of the times and the
demands of the people, has been an indisputable
prerogative of the Hawaiian monarchy." LILIUOKALANI, HAWAII'S STORY BY HAWAII'S QUEEN (1898), p. 21

To these Hawaiian leaders of the past, a claim that
the "Hawaiian people" had "inherent sovereignty" would
likely have been viewed as a challenge to the
prerogatives of the crown.

Of course, whether or not "Native Hawaiians" possessed
"sovereignty" of any sort over a hundred years ago
would appear to have little to do with whether they need
special racially-restricted health care today, and if
so, whether the U.S. Constitution permits such
solicitude.

3b. "National lands". The meaning of the term
"national lands" is unclear. If the reference is to the
so-called "ceded lands"--the Crown lands and government
lands of the kingdom, taken over by the revolutionary
government in 1893 and ceded to the United States at
annexation in 1898--then the proposed finding is
inaccurate. These lands were lands of the kingdom, and from
the time of the Great Mahele of 1848, "Native
Hawaiians" as a racial or ancestrally-defined group had no
legal interest in or right to these lands except insofar
as they had rights to vote as subjects of the
kingdom--rights shared by the non-"Native Hawaiian" subjects
and denizens of the kingdom. Patrick W. Hanifin,
Hawaiian Reparations: Nothing Lost, Nothing Owed, 17
Hawaii B.J. 107 (1982); "Existing Law, Native Hawaiians and
Compensation", 1 FINAL REPORT OF THE NATIVE HAWAIIANS
STUDY COMMISSION (1983), pp. 333-370; U.S. PACIFIC
COMMAND, FINAL EIS FOR LAND USE DEVELOPMENT AT BELLOWS
AIR FORCE STATION, WAIMANALO, HI (1995), section 6.6.

Many of the circumstances surrounding the changes of
government in Hawaii from 1893 through 1898 are still
matters of historical debate. The U.S. Supreme Court
reviewed these events briefly in Rice v. Cayetano, No.
98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section
I. Among the unquestioned facts, however, is that in
1893, Queen Liliuokalani, the last Hawaiian monarch,
surrendered her authority as queen following a
bloodless revolution (which the U.S. Supreme Court
characterized as an "intervention" by the group which supplanted
her). Rice v. Cayetano, slip op. at 8. She was
succeeded by a provisional government and eventually an
independent republic, and this independent republic ceded
the sovereignty and property of Hawaii to the U.S. in
1898, a cession which was accomplished, like the
revolution, without violence and with the evident
acquiescence of the populace. In 1959, a proposal that Hawaii
become a state passed by a margin of seventeen to one.
GAVAN DAWS, SHOAL OF TIME (1968), p. 391.

The references cited above reflect that during the
years of the monarchy, many inhabitants of American,
British and European extraction were full subjects of the
kingdom and many of these held posts at the highest
levels of the monarchy. The government was generally
administered without regard to race or ancestry, and the
public lands of the Kingdom were owned by the kingdom
and administered for the benefit of all the kingdom's
citizens, with neither special control nor special
entitlements reserved for subjects of Hawaiian ancestry
alone. Thus the "national lands" of the kingdom could
not be said to be, in any respect, lands of Native
Hawaiians alone. Even the lands which the monarch had
reserved to himself in the great land division of 1848
had become, by 1865, lands of the kingdom set aside,
under the supervision of a commission responsible to the
legislature, as a resource for the maintenance of the
monarch in what might be called his "official
capacity", and not as his or her own private property. See
generally Liliuokalani v. U.S., 45 Ct.Cl. 418 (1910);
Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864).

There were no "national lands" either of the kingdom
or of "Native Hawaiians" other than the crown and
government lands referred to above.
For the above reasons, this finding should be deleted
from the bill and should play no part in Congress'
deliberations or action.

PROPOSED FINDING (4)

"The health and well-being of Native Hawaiians are
intrinsically tied to their deep feelings and attachment
to their lands and seas."

RESPONSE TO (4):

This is a peculiar statement to apply without
qualification to over 200,000 Americans, most with extensively
mixed racial and ethnic background, pursuing widely
varied lifestyles and livelihoods and living around the
world. Assuming that this finding could have any
relevance to the purpose and content of this legislation,
something more to show its truth should be added. It
probably states too much and too little; too much,
because the statement is likely true for all persons of
all races and locations who live an agrarian existence
(which is, however, not the case for most Native
Hawaiians), and too little, because such universal
statements are of little value in fashioning either treatment
regimens for individuals or health care policy for
large or small populations with special needs. Whatever
the case, Congress should demand proof of such a
statement before making it a "finding".

PROPOSED FINDING (5):

"The long-range economic and social changes in Hawaii
over the 19th and early 20th centuries have been
devastating to the health and well-being of Native
Hawaiians."

RESPONSE TO (5):

This statement is factually inaccurate in large part,
and is misleading as a whole.

It must be noted first that many of the dramatic
social changes of the nineteenth century were originated by
the Hawaiian royalty, not forced upon them by
foreigners. In 1819 shortly after Kamehameha's death, his
widow Ka'ahumanu, then the most powerful of the ali'i nui
(high chiefs) , said, "We intend to eat pork and
bananas and coconuts and to live as the white people do."
Supported by her powerful Maui kinsmen, she "broke the
kapu", the strictures of the old religion. Under her
direction, the young King, Liholiho (Kamehameha II)
ordered destruction of the heiau (temples) and burning
of the wooden idols.

The next year, 1820, the first company of American
missionaries arrived, and soon thereafter Ka'ahumanu took
charge of Christianity and made it the official state
religion. Christianity displaced the Hawaiian
religion and became the new order. Those who did not convert
were evicted from their land. Both the British and
American consuls protested that Ka'ahumanu's new kapu
was a threat to the whaling fleet and bad for business.
Ka'ahumanu replied, "We do not rule there [in America
or Britain], but these islands are ours, and
we wish to obey the commands of God." LILIKALA
KAME'ELEIHIWA, NATIVE LAND AND FOREIGN DESIRES (1992), pp.
82, 154-157.

The chiefs for the most part adopted western economic
values and were eager to acquire western skills and
goods and technology. Indeed, the chiefess Kapi'olani
complained to a gratified Lahaina missionary in 1825
that when among her fellow chiefs "I hear so much said
about money, and cloth, and land, and ships, and
bargains, that it makes me sick..."

The King and chiefs worked with foreign nations,
welcomed the westerners and their laws and forms of
government and incorporated them into Hawaii's government.
In 1845 Kauikeaouli (Kamehameha III) explained to S.M.
Kamakau why he dismissed natives from government offices and
appointed foreigners: "My native helpers do not
understand the laws of the great countries who are working
with us."

William Little Lee, who had studied law at Harvard
under Supreme Court Justice Joseph Story, arrived in
Honolulu in 1846 with Charles Reed Bishop. At the request
of the King and chiefs, Lee drafted many of the
documents
which installed a stable democratic American form of
government. The constitution of 1852 as approved by
the King and chiefs established a strong role for the
popularly elected House of Representatives but was not
as democratic as Lee had proposed because the Chiefs
(whose maxim was "Kanakas were made for the Ali'i") had
become jealous of the growing power of the
people.

Unquestionably, the time between the first Western
contact and the latter part of the nineteenth century
was, from many standpoints including that of health,
disastrous for Hawaiians. Precontact Hawaiians had
reportedly suffered at least one devastating plague before
the arrival of Westerners in 1778 (DAVID MALO, HAWAIIAN
ANTIQUITIES 245 (Nathaniel Emerson, trans., 1951), but
English, European and American visitors in the 18th
and 19th centuries brought diseases to which the natives
had no immunity and which dramatically reduced the
native population. They also brought ideas and concepts
which resulted in extensive social, political,
religious and cultural changes for Native Hawaiians. ELEANOR
C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989).

It cannot fairly be said, however, that the changes in
the late 19th and the 20th centuries had similar
effects. Intermarriage among all Hawaii's ethnic groups
began immediately after Western contact and has always
been extensively practiced, and while the number of
"pure" Hawaiians has continued to decline to this day,
"Native Hawaiians", as defined in this bill to include
part-Hawaiians, have increased in numbers since about
1900 and life expectancy has increased dramatically.
See id. at 38-42; LAWRENCE H. FUCHS, HAWAII PONO: A
SOCIAL HISTORY (1960).

As Nordyke puts it: "Hawaiians in Hawai'i in the last quarter of the
twentieth century are a vibrant, proud, rapidly growing,
young, heterogeneous group, with only 4.5 percent at age
65 and over. . . . Hawaiian resurgence is observed in
politics, culture, education, and economics, with
leading roles taken by highly educated native people." ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed.,
1989) 40.

This picture, drawn by a respected and scholarly
author, differs from that drawn by the preamble to this
bill. The difference needs to be explored with care
before this proposed finding is adopted.

PROPOSED FINDING (6):

"The Native Hawaiian people are determined to
preserve, develop and transmit to future generations their
ancestral territory, and their cultural identity in
accordance with their own spiritual and traditional
beliefs, customs, practices, language, and social
institutions. In referring to themselves, Native Hawaiians use
the term `Kanaka Maoli', a term frequently used in the
19th century to describe the native people of Hawaii."

RESPONSE TO (6):

This section, like many others, has no evident
relevance to the issue of Native Hawaiian health needs. It
is also, as noted above, contradicted by scholarly
opinion that Native Hawaiians, as defined in this statute,
are a culturally, religiously, politically and
socially diverse group, thoroughly integrated into the life
of the state and nation, and that there is no unique or
broadly-shared "Native Hawaiian" cultural identity and
no unique and commonly-held set of "Native Hawaiian"
spiritual and traditional beliefs, customs, practices,
language, and social institutions.

The term "Kanaka Maoli", however, is disturbing
because, like the term "Native Hawaiian", it is a term of
racial differentiation. Whatever its use in the 19th
century, it is used today in a purely racial sense to
identify the same group which this legislation
identifies as "Native Hawaiians". It should be used, if at
all, only with sensitivity to that connotation of racial
separateness.

PROPOSED FINDING (7):

"The constitution and statutes of the State of
Hawaii--
'(A) acknowledge the distinct land rights of Native
Hawaiian people as beneficiaries of the public lands
trust; and

'(B) reaffirm and protect the unique right of the
Native Hawaiian people to practice and perpetuate their
cultural and religious customs, beliefs, practices, and
language."

RESPONSE TO (7):

(7)(A): The "public land trust" referred to would
appear to be the trust established by section 5(f) of the
Hawaii Admission Act, although this should be made
clear. Section 5(f) provides that the lands therein
described shall be held by the state of Hawaii as a public
trust, "to be managed and disposed of for one or more"
of five specified purposes, of which the "betterment
of the conditions of native Hawaiians, as defined in
the Hawaiian Homes Commission Act of 1920" is only one.
The other permissible purposes are education,
promoting farm and home ownership, making public improvements
and providing land for public purposes. Rice v.
Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000),
section II.

The "native Hawaiians" referred to in section 5(f) are
only those of 50% or greater Hawaiian "blood", and
they become "beneficiaries" of the trust under the
"betterment" clause only if the state of Hawaii chooses to
use some or all of the trust for that purpose. "Native
Hawaiians" as defined in this bill who have less than
50% Hawaiian "blood" are beneficiaries of the public
lands trust only to the same extent as all the other
citizens of the state of Hawaii.
No "land rights" are granted by section 5(f) to any
specific segment of the populace, Native Hawaiian or
otherwise.

(7)(B): The relevance of this finding to health care
is not explained and is not apparent. The "unique
right" of the Native Hawaiian people to practice and
perpetuate their cultural and religious customs, beliefs,
practices, and language is not at all settled in the
law of the state of Hawai'i, and the state supreme
court's description of such a "right" (albeit in dicta)
raises grave constitutional questions. See Paul M.
Sullivan, Customary Revolutions: The Law of Custom and
the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev.
99 (1998).

PROPOSED FINDING (8):

"At the time of the arrival of the first nonindigenous
people in Hawaii in 1778, the Native Hawaiian people
lived in a highly organized, self-sufficient,
subsistence social system based on communal land tenure with a
sophisticated language, culture, and religion."

RESPONSE TO (8):

The relevance of this finding to health care is not
explained and is not apparent. It might be noted that
the land tenure was feudal rather than communal (see
Principles Adopted by the Board of Commissioners to
Quiet Land Titles, in their Adjudication of Claims
Presented to Them, LAWS 1848, p. 41, reprinted in 2 REVISED
LAWS OF HAWAII (1925) 2124; Paul M. Sullivan,
Customary Revolutions: The Law of Custom and the Conflict of
Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998);
Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb.
23, 2000), section I.) and the monarch, who ruled
absolutely, had absolute power over the control and
management of land. Estate of His Majesty Kamehameha IV, 2
Haw. 715 (1864).

PROPOSED FINDING (9):

"A unified monarchical government of the Hawaiian
Islands was established in 1810 under Kamehameha I, the
first King of Hawaii."

RESPONSE TO (9):

The relevance of this finding to health care is not
explained and is not apparent.

In the interest of accuracy, it should be noted that
Kamehameha I was the first king of the unified Hawaiian
Islands. Prior to the unification of the islands,
Kamehameha I had been king of the island of Hawaii, one
of the Hawaiian Islands, but he was not the first
"king" of that island; the island of Hawaii had kings and
great ruling chiefs before Kamehameha I. ABRAHAM
FORNANDER, ANCIENT HISTORY OF THE HAWAIIAN PEOPLE TO THE
TIMES OF KAMEHAMEHA I, (Mutual Publishing 1996) (1880),
pp. 64-67.

PROPOSED FINDING (10):

"Throughout the 19th century and until 1893, the
United States--

'(A) recognized the independence of the Hawaiian
Nation;

'(B) extended full and complete diplomatic recognition
to the Hawaiian Government; and

'(C) entered into treaties and conventions with the
Hawaiian monarchs to govern commerce and navigation in
1826, 1842, 1849, 1875 and 1887."

RESPONSE TO (10):

The relevance of this finding to health care is not
explained and is not apparent.

In the interest of completeness, it should be noted
that such acknowledgment of Hawaii's national
independence did not end in 1893. It continued after the
termination of the monarchy up until the annexation of
Hawaii to the United States in 1898, as evidenced by
diplomatic recognition of the Provisional Government and the
Republic.

PROPOSED FINDING (11):

"In 1893, John L. Stevens, the United States Minister
assigned to the sovereign and independent Kingdom of
Hawaii, conspired with a small group of non-Hawaiian
residents of the Kingdom, including citizens of the
United States, to overthrow the indigenous and lawful
government of Hawaii."

RESPONSE TO (11):

The relevance of this finding to health care is not
explained and is not apparent.

The circumstances surrounding the overthrow of the
monarchy in 1893 are the subject of an extensive
historiography. Perhaps the most objective description is
found in 3 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM
(1967), Chapters 18-21. A rather one-sided view appears
in the so-called Apology Resolution, P.L. 103-150; a
rejoinder and rebuttal to the views expressed in P.L.
103-150 appear in Chapter 10 of THURSTON TWIGG-SMITH,
HAWAIIAN SOVEREIGNTY: DO THE FACTS MATTER? (1996).

It should be noted that more than half of the
Committee of Safety which brought about the replacement of the
monarchy with a provisional government were
native-born or naturalized subjects of the monarchy, and thus
were "Hawaiians" in a widely-accepted meaning of that
term (see Rice v. Cayetano, supra). All were residents
of the kingdom and committed to its orderly
government.

PROPOSED FINDING (12):

"In pursuance of that conspiracy, the United States
Minister and the naval representative of the United
States caused armed naval forces of the United States to
invade the sovereign Hawaiian Nation in support of the
overthrow of the indigenous and lawful Government of
Hawaii and the United States Minister thereupon
extended diplomatic recognition of a provisional government
formed by the conspirators without the consent of the
native people of Hawaii or the lawful Government of
Hawaii in violation of treaties between the 2 nations and
of international law."

RESPONSE TO (12):

The relevance of this finding to health care is not
explained and is not apparent.

The "history" set out in this finding has been a
subject of debate for over a hundred years. The
references cited in the above comments on Finding (a)(11)
should be consulted on this finding for both greater detail
and greater accuracy.

It should be noted that at the time of the 1893
revolution, the government of Hawaii was not "indigenous"
(since the electorate as well as the legislature, the
judiciary and the executive branches of government
consisted in significant part of persons other than Native
Hawaiians) and that in the eyes of the revolutionaries
at least, Queen Liliuokalani's presence on the throne
was not "lawful" since she had committed herself to
the promulgation of a new constitution without complying
with the procedures prescribed in the existing
constitution. See WILLIAM ADAM RUSS, JR., THE HAWAIIAN
REVOLUTION (1893-94) (1959), p. 81.

The removal of the queen was accomplished without
bloodshed and with only token opposition. Whatever might
have been the feelings in 1893 of the "native people
of Hawaii" (who formed less than 40% of the
population), those same "native people" were a major political
force within the Territorial government (see LAWRENCE H.
FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp.
79-85, 161-62). In 1959, at the time of the statehood
vote, they were about one-sixth of the populace, and the
overwhelming 17 to 1 majority vote in the 1950
statehood plebiscite shows support by Hawaiians as well as
other groups for that measure. Id. at 414.

PROPOSED FINDING (13):

"In a message to Congress on December 18, 1893, then
President Grover Cleveland reported fully and
accurately on these illegal actions, and acknowledged that by
these acts, described by the President as acts of war,
the government of a peaceful and friendly people was
overthrown, and the President concluded that a
`substantial wrong has thus been done which a due regard for
our national character as well as the rights of the
injured people required that we should endeavor to
repair'."

RESPONSE TO (13):

The relevance of this finding to health care is not
explained and is not apparent.

It should be noted, however, that the whole issue of
how the United States should respond to the events of
1893 was the subject of extraordinary and intense
debate, both in Congress and in the American press, both
immediately after the revolution and in 1898, when
annexation was under consideration. See WILLIAM ADAM RUSS,
JR., THE HAWAIIAN REPUBLIC (1894-98) (1961). Whatever
else might be said about the decisions of Congress
during this period, they exemplified the fullest and most
vital expression of the democratic process. President
Cleveland's opinion was only one of many, both for and
against the revolutionaries, and his view did not
prevail in the open, vigorous and exhaustive debate. That
was, and is, in its fundamental character, the
American way.

PROPOSED FINDING (14):

"Queen Lili`uokalani, the lawful monarch of Hawaii,
and the Hawaiian Patriotic League, representing the
aboriginal citizens of Hawaii, promptly petitioned the
United States for redress of these wrongs and for
restoration of the indigenous government of the Hawaiian
nation, but this petition was not acted upon."

RESPONSE TO (14):

The relevance of this finding to health care is not
explained and is not apparent.

President Grover Cleveland's early support for the
queen's restoration waned after she declared to his
representative that upon her restoration she would have the
revolutionaries beheaded, and when the provisional
government declined to step aside at the request of the
President. Ultimately, he referred the matter to
Congress.

Congress did not ignore the question, as this proposed
finding implies. In fact, the Hawaiian revolution was
the subject of two detailed reports which Congress
carefully considered, one (the "Blount Report) by James
H. Blount, who had been commissioned by President
Cleveland shortly after the revolution to investigate the
matter, and one (the "Morgan Report", S. Rep. 227, 53rd
Cong., 2nd sess.) by the Senate Committee on Foreign
Relations which conducted its own investigation upon
receipt of President Cleveland's message. After intense
debate, Congress passed resolutions warning all
foreign nations that intervention in the political affairs
of the islands would be considered an act unfriendly to
the United States, but took no action to restore the
monarchy. 3 KUYKENDALL, THE HAWAIIAN KINGDOM (1967),
pp. 623-31, 642-47.

PROPOSED FINDING (15):

"Further, the United States has acknowledged the
significance of these events and has apologized to Native
Hawaiians on behalf of the people of the United States
for the overthrow of the Kingdom of Hawaii with the
participation of agents and citizens of the United
States, and the resulting deprivation of the rights of
Native Hawaiians to self-determination in legislation in
1993 (Public Law 103-150; 107 Stat. 1510)."

RESPONSE TO (15):

The relevance of this finding to health care is not
explained and is not apparent.

The so-called Apology Resolution appears to have been
adopted without careful examination of the purported
"history" on which it was based, and the positions
ill-advisedly taken in the statute's preamble provide no
credible evidence to support the positions taken in
this finding. Chapter 10 of THURSTON TWIGG-SMITH,
HAWAIIAN SOVEREIGNTY: DO THE FACTS MATTER? (1996) addresses
each of the major historical assertions of the Apology
Resolution and explains how they are in error, or
misleading.

The U.S. Supreme Court in Rice v. Cayetano, No.
98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I,
acknowledged the existence of the Apology Resolution and
pointedly ignored it as historical authority,
preferring instead its own inquiry, based on more
conventionally scholarly works. Id. at 2-10.
The Apology Resolution contains the following
disclaimer: "Nothing in this Joint Resolution is intended to
serve as a settlement of any claims against the United
States."

PROPOSED FINDING (16):

"In 1898, the United States annexed Hawaii through the
Newlands Resolution without the consent of or
compensation to the indigenous people of Hawaii or their
sovereign government who were thereby denied the mechanism
for expression of their inherent sovereignty through
self-government and self-determination, their lands and
ocean resources."

RESPONSE TO (16)

:
The relevance of this finding to health care is not
explained and is not apparent.

The finding is misleading in a number of respects;
suffice it to note only (1) that neither the monarchy nor
the successor governments before annexation were
either by, for or of persons of Hawaiian ancestry
exclusively, and (2) that under the monarchy, persons of
Hawaiian ancestry had no "inherent sovereignty".
The population of the Hawaiian Islands at about the
time of annexation was somewhere near 35% of Hawaiian
ancestry, the remainder consisting of both citizens and
long-term residents of Japanese, Chinese, American,
British and other foreign ancestry. See ELEANOR C.
NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989), pp.
178-179, Tab 3-1. The government was a republic
conducted for all members of the populace. Five years
earlier at the time of the overthrow of the monarchy,
Hawaiians had formed only a slightly larger percentage of
the population, and then, as at the time of annexation,
the government was conducted for all the inhabitants
of the kingdom. Hawaiians usually controlled the
kingdom's legislature, but a major reason for this in the
later years of the monarchy was that the constitution
of the kingdom since 1887 had denied the franchise to
Asians not born in the kingdom. See LAWRENCE H.
FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp. 82-84; 3
KUYKENDALL, THE HAWAIIAN KINGDOM, 1874-1893 (1967) pp.
406-407. This became a matter of great concern to the
government of Japan, which pressed both the Kingdom
and the successor Provisional Government and Republic to
give the Japanese living in the islands the right to
vote. WILLIAM ADAM RUSS, JR., THE HAWAIIAN REVOLUTION
(1893-94) (1959), pp. 161-162.

At and after annexation, the United States always
treated Native Hawaiians as equals. This contrasts
starkly with the treatment of Alaska Natives. Both Alaska
and Hawaii became territories of the U.S. in the late
1800's and became states in 1959. But the 1867 treaty
by which Russia ceded Alaska to the U.S. expressly
provided that all inhabitants of the Alaska territory
would be granted US citizenship "with the exception of
uncivilized native tribes." Like other tribal Indians,
Alaska Natives were not granted US citizenship until
1924.

In contrast, the Organic Act of 1900 granted full and
immediate U.S. citizenship to "all persons who were
citizens of the Republic of Hawaii" in 1898, including
Hawaiians. Hawaiians not only enjoyed citizenship and
the right to vote, but they were the dominant
political group in Hawaii for at least several decades after
annexation. Thus Hawaiians came into the union as citizens, not as
members of a separate, quasi-sovereign Indian tribe.

In 1959, persons of Hawaiian ancestry joined with all
other persons in Hawaii to vote overwhelmingly (17-1)
for statehood. GAVAN DAWS, SHOAL OF TIME (1968), p.
391.

On the matter of "compensation" for the Crown and
government lands which passed from the kingdom's
government to the Provisional Government and thence to the
Republic and the United States, it should be noted that
the Newlands Resolution (30 Stat. 750) provided:

"The public debt of the Republic of Hawaii, lawfully
existing at the date of the passage of this joint
resolution, including the amounts due to depositors in the
Hawaiian Postal Savings Bank, is hereby assumed by the
Government of the United States; but the liability of
the United States in this regard shall in no case
exceed four million dollars. So long, however, as the
existing Government and the present commercial relations
of the Hawaiian Islands are continued as hereinbefore
provided said Government shall continue to pay the
interest on said debt."

The public debt of the Republic at the time of
annexation in 1898 was $4,457,605. The public debt of the
Kingdom at the time of the overthrow in January 1893 was
approximately $3,417,000. See THOMAS G. THRUM,
HAWAIIAN ALMANAC AND ANNUAL FOR 1900 (1900).

Thus, even if the ceded lands had been transferred
outright to the United States, the citizens of Hawaii
would have received substantial compensation (by way of
assumption of its public debt).

However, the lands were not ceded outright. The
Newlands Resolution required that the U.S. use the revenues
and proceeds of the ceded lands, "except as regards
such part thereof as may be used or occupied for the
civil, military or naval purposes of the United States .
. . solely for the benefit of the inhabitants of the
Hawaiian Islands for educational and other public
purposes." (At that time only about 26% of the inhabitants
of the Hawaiian Islands were of Hawaiian ancestry.)
The U.S. in 1900 turned over to the Territory of Hawaii
the possession and control of over 1.4 million acres
of the ceded lands. Those lands have remained in the
possession, use and control of the government of Hawaii
for the benefit of the citizens of Hawaii of all
ancestries (with the arguable exception of the 200,000 or
so acres reserved for leasing to "native Hawaiians"
under the Hawaiian Homes Commission Act) continuously to
the present.

Thus, the claim that the crown, government and public
lands of Hawaii were ceded to the United States
"without compensation" to the government of Hawaii is false.

The response and commentary to finding 3 above point
out that Native Hawaiians do not and did not have any
claim to the ceded lands or any right to "compensation"
for their transfer to the United States.

PROPOSED FINDING (17):

"Through the Newlands Resolution and the 1900 Organic
Act, the Congress received 1,750,000 acres of lands
formerly owned by the Crown and Government of the
Hawaiian Kingdom and exempted the lands from then existing
public land laws of the United States by mandating that
the revenue and proceeds from these lands be `used
solely for the benefit of the inhabitants of the Hawaiian
Islands for education and other public purposes',
thereby establishing a special trust relationship between
the United States and the inhabitants of Hawaii."

RESPONSE TO (17):

The relevance of this finding to health care is not
explained and is not apparent.

In the interest of accuracy, it should be noted that
the Newlands Resolution excluded property "used or
occupied for the civil, military, or naval purposes of
the United States, or . . . assigned for the use of the
local government" from the dedication of the proceeds
of the ceded lands to the benefit of the "inhabitants
of the Hawaiian Islands".

Two other items deserve comment:

"Inhabitant". Webster's Third New International
Dictionary (Unabridged) (1993), p. 1163 defines
"inhabitant" as "a person who dwells or resides permanently in a
place as distinguished from a transient lodger or
visitor". There is no evidence that the term as used in
the Newlands Resolution was intended to mean anything
else, or to refer to "Native Hawaiians".

"Special trust relationship". The term "special
trust relationship" should not be used here if it is
intended to refer to the "special relationship" between the
United States and Indian tribes. In 1900, two years
after annexation, Hawaii's "inhabitants" included
29,799 full-blooded Hawaiians, 7,857 part Hawaiians, 25,767
Chinese, 61,111 Japanese and several other racial or
ethnic groups totalling overall about 154,001
individuals. ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd
ed., 1989), pp. 178-179, Tab 3-1. There has never
been any claim made that this group as it existed in
1898, or as it might be composed today, is entitled to the
"special relationship" which exists between the U.S.
and the Indian tribes.

PROPOSED FINDING (18):

"In 1921, Congress enacted the Hawaiian Homes
Commission Act, 1920, which designated 200,000 acres of the
ceded public lands for exclusive homesteading by Native
Hawaiians, thereby affirming the trust relationship
between the United States and the Native Hawaiians, as
expressed by then Secretary of the Interior Franklin K.
Lane who was cited in the Committee Report of the
Committee on Territories of the House of Representatives
as stating, `One thing that impressed me . . . was the
fact that the natives of the islands . . . for whom in
a sense we are trustees, are falling off rapidly in
numbers and many of them are in poverty.'"

RESPONSE TO (18):

The Hawaiian Homes Commission Act (HHCA) provides
treacherous support for the argument that a trust
relationship exists between the U. S. and Native Hawaiians.
Most obviously, it limits its benefits generally to
those of 50% Hawaiian "blood", with some exceptions for
children of homesteaders who may inherit a homestead
lease if he or she has at least 25% Hawaiian "blood".
Thus it provides service only to about 50,000 of the
perhaps 200,000 "Native Hawaiians".

A claim of a trust relationship founded upon the HHCA
was rejected in the recent case of Han v. Department
of Justice, 824 F.Supp. 1480 (D. Hawaii 1993), aff'd 45
F.3d 333 (9th Cir. 1995), where the U.S. District
Court explained in detail why no such trust relationship
existed.

Nor does the HHCA provide support for an argument
that its benefits are not "racially" allocated or that
the racial distinction at its core is constitutional.
The HHCA was enacted in the heyday of Plessy v.
Ferguson, 163 U.S. 537 (1896), which upheld the racial
segregation of railway carriages and the concept that
"separate but equal" facilities meet the requirements of the
Fourteenth Amendment. The thinking of those times is
reflected in another quote from the testimony of the
same Franklin Lane referred to in the proposed finding.
Lane said of the "natives of the islands":

"There is a thriftlessness among those people that is
characteristic among peoples that are raised under a
communist or feudal system. They do not know what the
competitive system is and they will get rid of property
that is given them. They do not look forward. They
can not see to-morrow. Therefore, they should be given
as close identification with their country as is
possible and yet be protected against their own
thriftlessness and against the predatory nature of those who wish
to take the land from them, and who have in the past."
(H.R. Rep. No. 839, 66th Cong., 2nd sess. at 4.)

Never mind that this was said more than three
generations after the end of the "communist or feudal" system
in the islands. Never mind that Hawaiians at about
that time were a major power bloc in the Territorial
legislature and constituted much of the civil service
(See LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY
(1960), pp. 161-62).

If such condescending stereotyping was ever a lawful
basis for Federal legislation, Adarand and a simple
regard for the truth deprive it of validity today.

Plessy was effectively overruled by Brown v. Board of
Education, 347 U.S. 483 (1954), beginning a line of
jurisprudence, culminating in Adarand, which forms the
foundation for our present constitutional law on
race-based decision-making by the government. It is hardly
likely that if the HHCA were proposed today, it would
survive the strict scrutiny which Adarand requires.

PROPOSED FINDING (19):

"In 1938, Congress again acknowledged the unique
status of the Native Hawaiian people by including in the
Act of June 20, 1938 (52 Stat. 781 et seq.), a provision
to lease lands within the extension to Native
Hawaiians and to permit fishing in the area `only by native
Hawaiian residents of said area or of adjacent villages
and by visitors under their guidance'."

RESPONSE TO (19):

The relevance of this finding to health care is not
explained and is not apparent.

This finding is inaccurate insofar as it states that
Congress, in the cited statute, "acknowledged the
unique status of the Native Hawaiian people." The act in
question provides for the addition of certain land
therein described, called the "Kalapana extension," to
Hawaii National Park. That part of the statute
pertinent to the proposed finding reads as follows:

"Sec. 3 (a) That the Secretary of the Interior is
authorized to lease, . . . land ascertained by him to be
suitable for home site purposes in the Kalapana
extension as described herein, to native Hawaiians when such
occupancy does not encroach on or prevent free access
to any points of historic, scientific, or scenic
interest or an any manner obstruct or interfere with
protection and preservation of said area as a part of the
Hawaii National Park: Provided, however, That occupants
of homesites shall reside on the land not less than
six months in any one year: And provided further, That
fishing shall be permitted in said area only by native
Hawaiian residents of said area or of adjacent
villages and by visitors under their guidance.
(b) The term 'native Hawaiian', as used in this
section, means any descendant of not less than one-half
part of the blood of the races inhabiting the Hawaiian
Islands in 1778."

There is no recognition of a "unique status" or of
any other special relationship of any sort. More
important, the persons accorded the homesteading and fishing
privileges were not "Native Hawaiians" as defined in
the S. 1929 (i.e., those with any degree of Hawaiian
ancestry), but the "50% blood" Hawaiians who were also
beneficiaries under the Hawaiian Homes Commission Act
and within that group, only those who resided in the
area.

Of course, if the cited statute could not pass the
test of strict scrutiny under Adarand, which is likely,
it would be of little value today as precedent for any
racially limited privileges for persons of Hawaiian
ancestry.

PROPOSED FINDING (20):

"Under the Act entitled `An Act to provide for the
admission of the State of Hawaii into the Union',
approved March 18, 1959 (73 Stat. 4), the United States
transferred responsibility for the administration of the
Hawaiian Home Lands to the State of Hawaii but
reaffirmed the trust relationship which existed between the
United States and the Native Hawaiian people by retaining
the exclusive power to enforce the trust, including
the power to approve land exchanges, and legislative
amendments affecting the rights of beneficiaries under
such Act."

RESPONSE TO (20):

This finding is simply wrong.

First and most obviously, the Hawaii Admission Act
here referred to as well as the HHCA provided benefits
only to persons of 50% Hawaiian "blood", not "Native
Hawaiians" defined in this bill as persons with any
degree of Hawaiian ancestry.

Second, the Admission Act imposed a trust upon the
State of Hawaii, but made no reference to a "trust
relationship which existed between the United States and
the Native Hawaiian people". In fact, case law on the
point is directly contrary. In 1978 a Federal court
dismissed claims for breach of a claimed trust brought
by beneficiaries of the HHCA against that agency and
its chairman. It held that plaintiffs had no Federal
cause of action under the Admission Act because "[w]ith
Hawaii's admission into the Union, the national
government virtually relinquished its control over and
interest in the Hawaiian home lands. The problem described
in plaintiffs' complaint is essentially a matter of
state concern." Keaukaha-Panaewa Community Association
v. Hawaiian Homes Commission, 588 F.2d 1216, 1224 (9th
Cir. 1978). It held further that the Federal court
lacked jurisdiction over plaintiffs' claims under the
HHCA itself because that act, after statehood, was a
matter of state rather than Federal law.

"First, as a matter of law, the federal defendants
have no trust responsibility to plaintiff or other native
Hawaiians under statutory or case law. The Ninth
Circuit Court of Appeals has expressly held that "the
state is the trustee . . . The United States has only a
somewhat tangential supervisory role under the Admission
[Statehood] Act, rather than the role of trustee. . .
. Furthermore, nothing in the statutes at issue here
indicates the federal defendants have a trust duty.
The Admission Act specifically requires the State of
Hawaii to hold the home lands "as a public trust for the
. . . betterment of the conditions of native
Hawaiians." Admission Act section 5(f). There is no such
corresponding duty on the part of the United States."
Id. at 1486.

Indeed, the District Court expressly rejected the
argument set out in the proposed finding that the Federal
government's reserved power to enforce the state's
obligation, and the restrictions imposed on the state's
power to amend the HHCA, implied a Federal trust
obligation. The court stated:

"Section 4 merely establishes a compact between the
State of Hawaii and the United States, whereby the state
has agreed not to amend any of the Commission Act's
substantive provisions without the consent of the United
States. Admission Act section 4. This creates an
obligation of the state, not the federal government. And
while the federal government may bring an enforcement
action, it is not by law required to."
Id. at 1486.

Given these decisions, and the absence of any express
affirmation of a Federal trust relationship, this
finding should be deleted.

PROPOSED FINDING (21):

"Under the Act entitled `An Act to provide for the
admission of the State of Hawaii into the Union',
approved March 18, 1959 (73 Stat. 4), the United States
transferred responsibility for administration over portions
of the ceded public lands trust not retained by the
United States to the State of Hawaii but reaffirmed the
trust relationship which existed between the United
States and the Native Hawaiian people by retaining the
legal responsibility of the State for the betterment of
the conditions of Native Hawaiians under section 5(f)
of such Act."

RESPONSE TO (21):

This statement, taken as a whole, is false.

Nowhere in section 5(f) of the Admission Act, which
concerns the so-called "ceded lands trust", does the
United States affirm, reaffirm or acknowledge in any way
a "trust relationship which existed between the United
States and the Native Hawaiian people". Its only
reference to persons of Hawaiian ancestry is to "native
Hawaiians as defined in the Hawaiian Homes Commission
Act" (50% blood quantum). Bettering the conditions of
these 50% "native Hawaiians" is not a duty imposed
upon either the state or Federal government; it is merely
one of five permissible purposes for which trust
proceeds may be used, and the statute expressly states that
the proceeds of the ceded lands trust may be used for
"one or more" of the five enumerated purposes. It
permits the state to determine how the trust proceeds
are distributed. Price v. State of Hawaii, 764 F.2d 623
(9th Cir. 1985). Such state decisions, of course, are
subject to the constraints of the Fourteenth Amendment
and the Adarand decision with respect to any racial
test for allocation or receipt of benefits.

PROPOSED FINDING (22):

"The authority of the Congress under the Constitution
to legislate in matters affecting the aboriginal or
indigenous peoples of the United States includes the
authority to legislate in matters affecting the native
peoples of Alaska and Hawaii."

RESPONSE TO (22):

Although the U.S. Supreme Court has reserved judgment
on this point, an examination of pertinent authorities
indicates that Congress does not have authority to
legislate in matters specifically affecting the
"aboriginal or indigenous peoples of the United States" as
such, if those "peoples" are defined solely by race or
ancestry rather than by some association with a true
Indian tribe. Specifically with respect to Congress'
powers with respect to Native Hawaiians, the U.S. Supreme
Court stated in Rice v. Cayetano, No. 98-818, 2000 WL
201127 (U.S., Feb. 23, 2000), section IV.A:

"If Hawaii's [racial voting] restriction were to be
sustained under Mancari we would be required to accept
some beginning premises not yet established in our case
law. Among other postulates, it would be necessary to
conclude that Congress, in reciting [in the Hawaii
Admission Act] the purposes for the transfer of lands to
the State--and in other enactments such as the
Hawaiian Homes Commission Act and the Joint Resolution of
1993--has determined that native Hawaiians have a status
like that of Indians in organized tribes, and that it
may, and has, delegated to the state a broad authority
to preserve that status. These propositions would
raise questions of considerable moment and difficulty.
It is a matter of some dispute, for instance, whether
Congress may treat the native Hawaiians as it does the
Indian tribes. Compare Van Dyke, The Political Status
of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95
(1998) with Benjamin, Equal Protection and the Special
Relationship: The Case of Native Hawaiians, 106 Yale
L.J. 537 (1996). We can stay far off that difficult
terrain, however."

Justice Stevens and Ginzberg, dissenting, took
express note of 42 U.S.C. section 11701(17) which is
essentially identical to the proposed finding. The majority
of the court, however, evidently concluded that this
statutory affirmation of Congressional authority did
not lay the constitutional issue to rest.

A close examination of the issue indicates that
Congress cannot constitutionally treat "Native Hawaiians"
like tribal Indians. The Constitution at Article I,
Section 8 extends to Congress the power to "regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." The U. S. Supreme
Court has held that preferences for Indians were not
violative of constitutional principles of equal
protection of the laws, basing that conclusion on the fact that
Indian preferences were created by Congress in
recognition of the special status of Indian tribes as
separate "quasi-sovereign" groups, not groups defined only by
race. In Morton v. Mancari, 417 U.S. 535, 94 S.Ct.
2474, 41 L.Ed.2d 290 (1974), the U. S. Supreme Court
considered an employment preference for Indians in the
Bureau of Indian Affairs. In upholding the preference
against a challenge that it constituted racial
discrimination, the court pointed out:

"The preference, as applied, is granted to Indians not
as a discrete racial group, but, rather, as members of
quasi sovereign tribal entities whose lives and
activities are governed by the BIA in a unique fashion."

The court subsequently noted:

"The preference is not directed towards a 'racial'
group consisting of 'Indians'; instead, it applies only
to members of 'federally recognized' tribes. This
operates to exclude many individuals who are racially to
be classified as 'Indians'. In this sense, the
preference is political rather than racial in nature."

The most recent annual listing of "Indian Entities
Recognized and Eligible to Receive Services From The
United States Bureau of Indian Affairs" (63 Federal
Register 71941, Dec. 30, 1998) includes no Hawaiian "tribe",
and a recent effort by a group of Hawaiians to have a
court declare them a tribe was rejected in an opinion
that indicated that no Hawaiian group could qualify as
such an entity (see Price v. State of Hawaii, 764 F.2d
623 (9th Cir., 1985)).

PROPOSED FINDING (23):

"Further, the United States has recognized the
authority of the Native Hawaiian people to continue to work
towards an appropriate form of sovereignty as defined
by the Native Hawaiian people themselves in provisions
set forth in legislation returning the Hawaiian Island
of Kaho`olawe to custodial management by the State of
Hawaii in 1994."

RESPONSE TO (23):

The relevance of this finding to health care is not
explained and is not apparent.

An examination of the legislation concerning the
return of the island of Kaho`olawe to the State of Hawai'i
and providing funds and direction for environmental
cleanup and restoration of that island does not disclose
any language which might support the statements in
this proposed finding. Legislation of the State of
Hawaii pertinent to Kaho'olawe provides for transfer of
"management and control" of that island to "the
sovereign native Hawaiian entity upon its recognition by the
United States and the State of Hawaii" (Hawaii Revised
Statutes section 6K-9), but no such "entity" existed
when the law was passed or exists now. In any event,
that state law adds nothing to the Federal statute
referred to here and would not be binding on the Federal
government even if the state so intended.

PROPOSED FINDING (24):

"In furtherance of the trust responsibility for the
betterment of the conditions of Native Hawaiians, the
United States has established a program for the
provision of comprehensive health promotion and disease
prevention services to maintain and improve the health
status of the Hawaiian people. This program is conducted by
the Native Hawaiian Health Care Systems, the Native
Hawaiian Health Scholarship Program and Papa Ola Lokahi.
Health initiatives from these and other health
institutions and agencies using Federal assistance have begun
to lower the century-old morbidity and mortality rates
of Native Hawaiian people by providing comprehensive
disease prevention, health promotion activities and
increasing the number of Native Hawaiians in the health
and allied health professions. This has been
accomplished through the Native Hawaiian Health Care Act of 1988
(Public Law 100-579) and its reauthorization in
section 9168 of Public Law 102-396 (106 Stat. 1948)."

RESPONSE TO (24):

The existence of a trust responsibility on the part
of the United States toward "Native Hawaiians" is
doubtful, and should not be assumed in this proposed
finding. The case of Adarand Constructors v. Federico Pena,
515 U.S. 200 (1995), read together with the thoughtful
analysis in Williams v. Babbitt, 115 F.3d 657 (9th
Cir. 1997), indicates that no trust relationship between
the United States and a group defined by race alone
could lawfully exist, even if that group consists of
Indians or Alaska Natives. The comprehensive legal
analysis in Stuart Minor Benjamin, Equal Protection and the
Special Relationship: The Case of Native Hawaiians,
106 Yale L.J. 537 (1996), shows that no such
relationship exists at all in the case of Native Hawaiians.

Thus legislation passed on the assumption that such a
relationship does exist is in fact based solely on a
racial distinction, and is constitutionally
questionable.

The matter cannot be resolved simply by Congressional
fiat. The broad power of the Federal executive and
Congress notwithstanding, no "tribe" can be created
where none exists in reality. In U.S. v. Sandoval, 231
U.S. 28 (1913), the U.S. Supreme Court considered
whether the Pueblo Indians could be brought by Congress
within the "special relationship". It examined a variety
of factors indicating that Congress could do so,
including the facts that the Pueblos are "Indians in race,
custom, and domestic government", that they lived "in
separate and isolated communities, adhering to
primitive modes of life, largely influenced by superstition
and fetichism [sic], and [are] chiefly governed
according to the crude customs inherited from their
ancestors." It balanced these considerations against arguments
that the Pueblos were citizens of the United States
(unlike most Indians at the time) and that their lands
were held by them in fee simple (rather than being held
in trust by the Federal Government) and concluded that
it was within the power of Congress to treat the
Pueblos as an Indian tribe. The court cautioned, however,
that "it is not meant by this that Congress may bring
a community or body of people within the range of this
power by arbitrarily calling them an Indian tribe, but
only that in respect of distinctly Indian communities
the questions whether, to what extent, and for what
time they shall be recognized and dealt with as
dependent tribes requiring the guardianship and protection of
the United States are to be determined by Congress,
and not by the courts." Id. at 46.

This caution deserves careful consideration before
Congress attempts to bring "Native Hawaiians", who share
none of the group or individual characteristics deemed
pertinent in Sandoval, within the ambit of the
"special relationship" which Congress has with true Indian
tribes. Unlike the Pueblo communities, there is no
unifying group character to "Native Hawaiians" other than
race, and under current law, no aggregation of people
on grounds of their race alone can lawfully be given
special privileges at the ballot box (Katzenbach v.
South Carolina, 382 U.S. 967 (1966); Gomillion v.
Lightfoot, 364 U.S. 339 (1960)) or elsewhere (Adarand
Constructors v. Federico Pena, 515 U.S. 200 (1995).

There is no Hawaiian "tribe", and one case which
considered a claim by a purported Hawaiian tribe indicates
that Hawaiians are unlikely be able to establish such
a status. Price v. Hawaii, 764 F.2d 623 (9th Cir.
1985).
Thus the claimed "special relationship" would, if
recognized by Congress, extend privileged political status
to a group defined solely by race or ancestry. Given
the U.S. Supreme Court's cautionary language in Rice,
Congress should consider carefully whether such an
outcome is either socially wise or constitutionally
permissible.

PROPOSED FINDING (25):

"This historical and unique legal relationship has
been consistently recognized and affirmed by Congress
through the enactment of Federal laws which extend to the
Native Hawaiian people the same rights and privileges
accorded to American Indian, Alaska Native, Eskimo,
and Aleut communities, including the Native American
Programs Act of 1974 (42 U.S.C. 2991 et seq.), the
American Indian Religious Freedom Act (42 U.S.C. 1996), the
National Museum of the American Indian Act (20 U.S.C.
80q et seq.), and the Native American Graves
Protection and Repatriation Act (25 U.S.C. 3001 et seq.)."

RESPONSE TO (25):

Please see the response and commentary to finding 24
above.

It may be that all of these programs should be
reconsidered in light of their presumptive
unconstitutionality under Adarand v. Pena, 515 U.S. 200 (1995).

This list of entitlement programs, and that which
follows in the next proposed finding, illustrates why
this bill presents a grave risk of harm even if all the
objectionable "findings" language is deleted. Each
such piece of legislation is cited as precedent for the
next. If race is not to be a divisive criterion for
political and economic privileges in Hawaii, then not
only must S. 1929 be rejected, but existing preference
legislation should be repealed whenever the opportunity
arises.

PROPOSED FINDING (26):

"The United States has also recognized and reaffirmed
the trust relationship to the Native Hawaiian people
through legislation which authorizes the provision of
services to Native Hawaiians, specifically, the Older
Americans Act of 1965 (42 U.S.C. 3001 et seq.), the
Developmental Disabilities Assistance and Bill of Rights
Act Amendments of 1987, the Veterans' Benefits and
Services Act of 1988, the Rehabilitation Act of 1973 (29
U.S.C. 701 et seq.), the Native Hawaiian Health Care
Act of 1988 (Public Law 100-579), the Health
Professions Reauthorization Act of 1988, the Nursing Shortage
Reduction and Education Extension Act of 1988, the
Handicapped Programs Technical Amendments Act of 1988, the
Indian Health Care Amendments of 1988, and the
Disadvantaged Minority Health Improvement Act of 1990."

RESPONSE TO (26):

Please see the comments on findings 24 and 25 above.

While none would object to Native Hawaiians receiving
Federal assistance on the same basis as other
citizens, there is grave concern with affording Native
Hawaiians who are sick, disabled, elderly or veterans
priority consideration or special attention solely on account
of their race or ancestry, or on account of a change
of government over a hundred years ago which brought
Native Hawaiians into the very nation which makes those
benefits available to all.

PROPOSED FINDING (27):

"The United States has also affirmed the historical
and unique legal relationship to the Hawaiian people by
authorizing the provision of services to Native
Hawaiians to address problems of alcohol and drug abuse
under the Anti-Drug Abuse Act of 1986 (Public Law
99-570)."

RESPONSE TO (27)

Please see the comments on findings 24 and 25 above.

PROPOSED FINDING (28):

"Further, the United States has recognized that Native
Hawaiians, as aboriginal, indigenous, native peoples
of Hawaii, are a unique population group in Hawaii and
in the continental United States and has so declared
in Office of Management and Budget Circular 15 in 1997
and Presidential Executive Order No. 13125, dated June
7, 1999."

RESPONSE TO (28):

Whatever the United States might have "recognized" or
"declared", the fact is that "Native Hawaiians" are a
group defined by race or ancestry alone. A brief
discussion of some of the key words in the finding,
however, is appropriate.

28a. "People." "Native Hawaiians" are not a "people",
at least in the sense apparently intended, which is
defined in Webster's Third New International Dictionary
(Unabridged) (1993), p. 1673 as "a body of persons
that are united by a common culture, tradition, or sense
of kinship though not necessarily by consanguinity or
by racial or political ties and that typically have a
common language, institutions, and beliefs." As
noted above, Native Hawaiians are thoroughly integrated
and do not form a "body of persons" separate from the
rest of the state and nation in any significant sense.
Their common language is English, their common
institutions are those of the state of Hawaii and the United
States, and their beliefs are as varied as those of
the populace at large.